Wednesday, December 28, 2011

SOPA: The Trojan Horse of Censorship 2/2

by Nomad

Mischief and CartwheelsIn the previous post, we looked at the problem of selective enforcement of the proposed anti-piracy laws found in SOPA and PIPA. With so many possible violations (the Internet is a veritable nest of SOPA cases) the sheer number would overload the Justice system. With a limited budget, the possibility of selective enforcement by the Department of Justice, there are real questions whether SOPA could ever be applied constitutionally at all.

That shouldn't come as any surprise. Generally speaking, the problem of selective enforcement is what happens when poorly written, ill-conceived laws are created. Instead of serving a legitimate purpose, these laws become tools for extortion, intimidation and all manner of mischief. Moreover, they turn normally law-abiding citizens into felons. These anti-piracy laws are much more likely to create a new generation of Internet radicals and hackers. Most importantly, SOPA and PIPA are examples of a stupid and impossible policy of attempting to latch the door of an empty barn while the spirited mare named "Net" gallops off down the road. IBM estimates that by 2015, there will be 1 trillion devices connected to the Internet, constantly recording and sharing information. That's a hell of lot of policing and prosecuting of poorly-supervised 18-year-olds and gospel-loving grandmothers to do but law firms across the nation must be doing cartwheels at the prospect of SOPA and PIPA.

Despite the fact that SOPA is foolishness in writing, the entertainment industry seems hell-bent on imposing its self-serving regulations on the Internet and, in the process, destroy one of the best things to come along since the invention of writing. Only when the US begins to lose its competitive edge in Net-based innovation will misguided Congressmen realize that the dangers of allowing major corporations to set government policy.

Even without SOPA, the entertainment industry has attempted to use the laws already on the books to punish those who use downloading software, such as LimeWire, Kazaa and BitTorrent to illegally obtain material.

Reprehensible

Let's examine the case of Jammie Rasset Thomas. This Minnesota woman has been in and out of court since 2006 for illegally downloading 24 songs which she later shared online. The record industry sued her for damages to the tune of $1.5 million, quite a sum for a ordinary housewife from the Land of Sky Blue Waters. (That’s $62,500 for each song ) This is not the only case that Capitol Records has brought against downloaders, but it is one in which the accused has made an attempt to fight back.

In fact, by the beginning of 2005, with global sales in a five-year free fall, various music labels had filed 7,437 lawsuits against fans suspected of uploading copyrighted music. In nearly every case, the accused would naturally decide that it would be more economical in the long run to settle, rather than hire a lawyer and face the high-powered legal firms of corporations.

Whether you agree that copy infringement is a serious problem or not, there is still the matter of the punishment being commensurate with the crime. This is not a small matter; in fact, it forms the basis of all law.In the case of BMW of North America, Inc. v. Gore, the Supreme Court ruled that excessively high punitive damages violate the Due Process clause of the Constitution. Punitive damages may not be "grossly excessive" and must be based on three main principles, most important of which is the degree of reprehensibility of the defendant’s conduct. Meaning: Was the defendant displaying, for example, reckless disregard for health or safety, or evidence of bad faith? How does a court determine what is truly reprehensible and what is merely harmful? The Supreme Court ruled that the degree of reprehensibility was governed by these factors:

the type of harm;

reckless disregard for health and safety of others;

financially vulnerable targets;

repeated misconduct; and

intentional malice, trickery or deceit.

In the Thomas case, none of these factors seem particularly compelling. There are other problems with the decision. According to the ruling of Philip Morris USA v. Williams (2007) the court decided that the degree of reprehensibility is determined by direct harm the misconduct caused. The more reprehensible the misconduct the greater the justification for a larger punitive damage award. The key words, of course, are "direct harm."For this Thomas verdict to stand in any fair court, it would seem that the recording industry association would have had to show the court how the distribution of those particular 24 songs cause direct harm to the industry. Not merely the general act of downloading and uploading music. Otherwise what is the meaning of "direct harm" ?However, the Court also noted in the Philip Morris case, that these factors can be over-ridden if it is necessary "to deter future conduct." (One assumes that means the future conduct of that particular individual and not all law-abiding citizens. Otherwise it falls back into the area of selective enforcement.)Let's return to the Thomas case. When the jury in Minneapolis ruled that she was indeed liable of the infringement, the Recording Industry Association of America- a trade group representing four major music labels- hailed the verdict. Thomas appealed the judgement in a US District Court and Judge Michael Davis eventually reduced the amount somewhat. (Later this decision was challenged) Obviously the court is in a mess and Thomas has since been ordered to pay varying amounts in statutory damages, ranging from $54,000 to $1.92 million.

No matter what the eventual outcome in the case, some might argue that for this person to be tied up in courts for the last six year facing the very real possibility of financial ruin- all for the sake of 24 songs- is in itself a form of excessive punishment. And it doesn't take a lawyer to see the injustice and bullying being done here.

Blurred Lines

The Thomas case is instructive if only because it shows exactly the kind of strong arm tactics that the corporate supporters of SOPA and PIPA have used in the past. There is no reason to think that the passage of SOPA will soften their hearts and convince them to forgo their intimidation against their potential customers.

Sarah Ward, a 66-year-old dyslexic retired grandmother, was threatened with a lawsuit over allegedly pirating millions of dollars in hard-core rap. The record industry said Ward perpetrated the heist using KaZaA, a Windows-only program, despite the fact that Ward owned a Mac.

Despite not owning a computer or even a router, a retired woman has been ordered by a court to pay compensation to a movie company. The woman had been pursued by a rightsholder who claimed she had illegally shared a violent movie about hooligans on the Internet, but the fact that she didn’t even have an email address proved of little interest to the court. Guilty until proven innocent is the formula in Germany.

One of the problems with SOPA is that it mixes “real” substantial property with the more ephemeral digital form. That’s the reason why you find so many diverse corporations supporting the bill, companies with a legitimate quarrel with foreign ripoffs and counterfeit knock-offs of their merchandise. This is indeed a very real problem for many manufacturers, perhaps not of purses or shoes, but of patented equipment in which exact specifications are vital to safety and proper function, like engines and spare parts. Most people would not argue with the merit of that particular aspect of SOPA.

By quoting one CEO, writer Sarah Jacobsson Purewal for PCWorld attempts to make a case for SOPA using counterfeit merchandise- rather than illegal downloading of music and films.

"Our mistake was allowing this romantic word--piracy--to take hold," Tim Rothman, Co-CEO of Fox Filmed Entertainment, told the New York Times last week. "It's really robbery--it's theft--and that theft is being combined with consumer fraud. Consumers are purchasing these goods, they're sending their credit card and information to these anonymous offshore companies, and they're receiving defective goods."

A valid point, no doubt. However, to mix the two forms of property is not particularly honest. For example, when a person copies an MP3, there is no actual loss of the original property. It is not like having your car stolen, for example, nobody is being "deprived" of anything. (More like having the magical power to duplicate your car.)

And in the case of illegal downloading, there’s no question of defective goods. In fact, that's precisely the problem and it strikes fear in the heart of the film and music industry. The copy is identical and exactly as valuable as the original product. Relatively simple to do and free, the world wide practice of illegal copying and downloading has turned the industry on his head.

Of course the industry had the same objections to video recording technology when it was first introduced. When the long-time lobbyist for the U.S. movie industry Jack Valenti of the Motion Picture Association of America spoke to Congress about the problem in the 1970s, he told the credulous politicians:

[T]he VCR is stripping . . . those markets clean of our profit potential, you are going to have devastation in this marketplace. . . . We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

If that were not enough, he went on to say, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

The publishing industry too has survived despite Xerox which is potentially a major copyright challenge. Prior to this, the outcry was against the phonograph. John Philip Sousa testified before Congress about the threat that recorded music posed:

When I was a boy . . . in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution, as was the tail of man when he came from the ape”

So these hysterical over-reactions are nothing new. The Copyright laws are constantly being challenged by technological developments. Nobody is seriously arguing that creativity shouldn't be rewarded or protected. However, SOPA goes far beyond protection and rewards. Besides, isn't it only fair to ask: How much compensation is fair and how much is simply excessive and greed? In a notable bit of hypocrisy, when an anti-piracy group in Netherlands, BREIN, used a third party to supply a track for an anti-piracy film at local film festival, it was found that the music was used without the composer's permission. The composer claimed a million euro compensation for the unauthorized distribution of his work on DVDs. However, a board member of a royalty collection agency offered to help him recoup the money, but only in exchange of 33% cut.

The way SOPA and PIPA can be applied- the way the copyright laws are presently being applied- appears to have a chilling effect on innovation and creativity- the opposite effect of goal of the original copyright laws.

The difference now is mainly on the medium used -- previously it was paper or analog media and now everything is in a digital format which allows a much faster exchange of a higher quality and also with global reach through the Internet."

Back in the days of the old Soviet Union, the state licensed access to photocopiers and referred to people circulating Samizdat pamphlets as “pirates,” because they undermined the information control that the bureaucratic oligarchy and its system of exploitation depended on.

Twenty years after the Fall of Communism, it’s corporate capitalism that depends on information control as the basis of its power..Today “intellectual property” is the central monopoly on which the profits of global corporations depend. “Intellectual property” serves the same protectionist function for transnational corporate capitalism that tariffs did for the old national industries a century ago..

That definition of "intellectual property" is continually being revised to fit the needs of the manufacturer. For example, it might surprise you to learn that when you purchase a CD, you are not an owner of the music on that CD. You are merely the owner of the CD. According to law, The Copyright Act distinguishes between ownership of a copyright and ownership of a material object- that is, the CD. According to the Recording Industry Association of America (RIAA), you only have a license to listen to the music on the CD. And this copyright concept confusion has also crossed the line in the opposite direction as well.

As we reported earlier in the year, Sony Computer Entertainment America LLC attempted to sue a 21-year old George Hotz for violating his PlayStation3 owner's contract agreement by rewiring/ re-programming his equipment. Furthermore, they charge, by offering his instructions, methods, authorization keys and devices to other hackers Hotz violated the Digital Millenium Copyright Act. The goal of this de-engineering project was to "jailbreak" the Sony game device- expanding the device’s capabilities beyond the manufacturer's specs.

Suddenly, it seems, we are all allowed to purchase the right to use but not allowed to own the product.

In any case, there’s quite a bit of hypocrisy going on. For example, PCWorld magazine itself posted this MP3 how-to guide back in 2000. It walks a very fine line indeed in promoting Napster as a tool for downloading MP3s while noting its illegality in the same article.

A popular MP3-gathering tool is Napster, the infamous music sharing software that turns any computer into an audio file server. Though Napster has a clear policy of supporting the rights of copyright holders, there is no arguing the fact that Napster is used primarily as a piracy tool.

This link to Napster (found in the archives)would definitely be subject to felony charges if SOPA were adopted into law. And that is only the beginning of the headaches and unintended consequence of this legislation. Not by a long shot.

Hypocrisy on a Huge Scale

Allow me to introduce you to Mike Mozart, a fellow researcher who, after hours of intelligent sleuthing, has discovered a wondrous secret about SOPA; a revelation that is truly a game-changer when it comes to understanding the mentality of the people who have been pushing for anti-piracy legislation. It is an important piece of this anti-piracy puzzle. So I urge you to sit in a comfortable chair and play this enlightening - and entertaining- video. You may be in for a shock.

So, according to our friend here, the very people who have for a decade been promoting the software that allows people to download music, books and films for free (with exclusive rights to distribute it!) are the same people who are now demanding from the government the legal right to sue anybody who uses the software. And our "detective" is clearly able to produce thousands and thousands of pages of evidence of corporate collusion, examples to prove his case. Here is further conclusive proof of his claim.

This brings into play a very interesting situation indeed.

Suppose this horrible piece of legislation somehow manages to sail through the Congress, succeeds in getting Obama's signature and becomes a law, doesn’t this mean that all of the companies that have gleefully distributed this software are now liable to be sued? What's really going on here?

Corporate Conspiracy?

If one is of a suspicious frame of mind, it would hard not to see this push for legislation on copyright infringement as representing the latest attempt by corporations- not merely the entertainment industry- to control and essentially dismantle the Internet. Using the boogey man of piracy, are corporations using SOPA as a kind of Trojan horse in order to sieze control of the Internet?

You don’t need to be an alarmist to see their motivation. The Internet with its ability to inform and to organize is one of the most formidable challenges to the power structure of the 1%.

Whether all this legal maneuvering is for the sake of profit or whether, as some so-called conspiracy theorists may claim, an attempt at a coup d’etet by corporations and the 1%, it is up to everybody to defend the Net as much as we are able. Imagine what the Internet would be without Facebook, Twitter and Google.. blogs like Politicalgates?

If one wishes to launch a successful coup d’ete of a republic, one logical first step must not be overlooked. Without this, the toppling of a nation is most likely destined to failure.

Undoubtedly the absolute first thing you should do is to cut all forms of communcations with the outside world off at once. Be sure t include: Telephone, Telex, Wireless, Radio, etc. THIS IS MOST IMPORTANT. It will prevent the present government from mobilizing its forces, deploying their forces in strategic locations that are not normally guarded, etc. It will also prevent them from calling outside for emergency help, jeopardizing your hard work, not to mention your life. Soon the rest of the world will know something has happened, but they will not know who has taken the government, how the coup is progressing, and so forth. Make sure all forms of communications are completely cut.

Paramount to all forms of communication in this day and age is the Internet. This is one reason why many have looked upon the slow encroachment by corporations with grim misgivings. As the Geneva-based Internet Society (ISOC) with its more than 100 organisational members and over 50,000 individual members in over 80 Chapters in 72 countries, states:

The Internet challenges typically hierarchical structures, whether they are societal, economic or political in their nature. It is a tool that has evolved through empowered users and communities - its very existence encourages empowerment and its success is dependent upon it. Yes, empowerment can be threatening - but it is not Internet specific. Governments that undertake actions to quash empowerment or freedom on the Internet do so not because it is the Internet, but because that is the way they “manage” empowerment and freedom generally.

In this sense, all legislation designed to curtail the freedom of the Internet, whether intentionally or theoretically, is the opposite of “empowerment.” If that doesn’t motivate you to take action against SOPA and all other bills under discussion in Congress, then perhaps you have never really understood the true power of the Internet.

The Required Action

What is needed to prevent this bill from becoming law is a concerted public action. Some of those who have spoken out against SOPA have directed attention to the corporations that have openly supported the bill with lobbyists and campaign contributions.

While boycotts and threats of consumer retaliation might have some marginal success at waking up some of the supporting companies, most of the larger corporations, like Time Warner, are so diversified, that, unfortunately, they would be essentially unaffected by any kind of consumer revolt. Too big to care, you might say. Some simply do not value what you think about the Net.

Others think that all energies should be directed at the Congress.

On Wednesday, January 18 2012, Congress will return to consider the bill. It is not at all a forgone conclusion so, thinking the matter is hopeless is really a self-fulfilling prophecy.

Below is a link to a chart of the thirty one co-sponsors of SOPA. I have tried to include the telephone numbers, twitter and Facebook accounts where available.

That’s a good start, I think. Any other ideas? I hope we can all do our part to stop this wretched proposition from ever reaching the president's desk.

One last thing to add. Normally, in writing for Politicalgates, I have been content simply to inform and to join in on the discussion. Some here have gently criticised that the news is somewhat depressing. I agree with that. (Honestly I am a fun-loving guy)

However, what would be even more depressing than bad news is not having any means of learning about the problems we face, and not being able to share this information without fear of reprisal.

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